Differences between Common Law Peace Bonds and Section 810 Peace Bonds

Differences between Common Law Peace Bonds and Section 810 Peace Bonds

[Recognizances issued under section 810 of the Criminal Code are informally and regularly referred to as peace bonds, particularly by non-jurists. For ease of reference, I will refer to them here as 810 peace bonds.]

A peace bond can be obtained through an information sworn pursuant to s. 810 of the Criminal Code or relying on the common law to require a person to enter a common law peace bond without reference to s. 810 of the Criminal Code. 

Re:  Regina v. Shaben et al. (1972), 1972 CanLII 358 (ON SC), 8 C.C.C. (2d) 422. 

The onus is on the applicant on the balance of probabilities.

 Mackenzie v.  Martin 1954 CanLII 10 (SCC), [1954] S.C.R. 361 at 368. 

Once the application is made the accused can either seek to show cause why he or she should not enter the bond, enter the bond as proposed or not show cause but contest one or more of the suggested terms.

The applicant must persuade the application judge that he or she fears for his or her safety and the application judge must be satisfied that their fear is a reasonable one. This fear need not be specifically stated by an applicant as the court can infer it from the totality of the evidence received (see J.H. v. W.B. (2001), 2001 YKTC 502 (CanLII), 44 C.R. (5th) 39 (Y.T. Terr. Ct.)).

Differences Between Common Law and Section 810 Peace Bonds

The differences in the applications are that a s. 810 peace bond is based on a sworn information while a common law peace bond generally is not; a s. 810 bond can be for a period not to exceed 12 months while there is no maximum period for a common law bond; a s. 810 bond is based on a more limited basis, that the complainant’s fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common law partner or child or will damage his or her property. 

A common law peace bond has a wider scope, a reasonably apprehended breach of the peace; and a s. 810 peace bond has a specific provision for breach allegations pursuant to s. 811 which creates a hybrid offence of breaching a peace bond ordered under various Criminal Code sections.   Where the election is by indictment the maximum penalty is two years in jail and when prosecuted summarily the maximum penalty is six months.

Where a common law peace bond is alleged to have been breached the prosecution is pursuant to s. 127 of the Criminal Code, for disobeying a court order which has the same penalty provisions as s. 811.        

A peace bond is not a finding of guilt or a criminal conviction.  A peace bond is preventative justice in order to keep the peace in general and, in most instances, specifically in regards to one or more named persons.  An order that a common law peace bond be entered reflects a finding by the court that there was a basis for apprehending that the appellant would commit a breach of the peace.

 R. v. White [1969] 1 C.C.C. 19 (B.C.S.C.), cited with approval in Beardsley v. Ontario Provincial Police 2001 CanLII 8621(ON CA), [2001] O.J. No. 4574 (Ont. C.A.).

R. v. Musoni, 2009 CanLII 12118 CanLII (ON SC).

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